As state and local governments continue to enact laws prohibiting employers from asking about candidates’ pay history, some questions have arisen: Namely, how do you determine whether any salary history bans apply to your situation?
Is applicability based on the prospective worksite? Where the interview takes place? A recruiter’s location when they’re asking?
While there are no definitive answers yet, employers’ best bet today may be to look to guidance that accompanied New York City’s ban, according to Susan Gross Sholinsky, a member of the firm in the New York office of Epstein Becker Green.
First, the guidance notes that if an employer asks about salary history during an in-person conversation in the city, “there will likely be jurisdiction because the impact of the unlawful discriminatory practice is felt in New York City.” So if you’re interviewing someone in New York City for a job to be performed outside the city, you probably don’t want to be asking about pay history. Sholinsky also noted that it may be worth considering whether a significant amount of related recruiting activity is taking place in the city. If that’s the case, “I’d just be safe [and] comply with the law,” she said.
Employment laws generally apply to where the job is, Sholinsky said, but it seems like New York City’s guidance goes beyond that here. “Arguably, it could apply, even if the job was to be performed somewhere else,” she said.
It then goes on to say that even if the question is asked outside the city, “there could be jurisdiction if the impact of the unlawful discriminatory practice is felt in New York City,” – perhaps referring to interviews that take place outside the city or via phone for work to be done in the city.
Finally, it directs entities to “apply the same jurisdictional analysis in this context that they would involving other areas of the City Human Rights Law (e.g., in the employment context, residency in New York City alone, without more, is generally not enough to establish impact in New York City).” So you’re interviewing someone outside the city for work to be performed outside the city, but they’re a city resident? It doesn’t sound like the law would apply. If you’re interviewing them to perform work from home, however, that may be a different story, Sholinsky noted.
Of course, this is just New York City’s guidance. Other laws may offer more information, but many don’t and, because they’re in their early stages, many don’t have accompanying guidance either. Still, if an employer applies New York City’s guidance elsewhere, “I couldn’t imagine they’d be deemed in bad faith out of compliance,” Sholinsky said. “Nobody else has given this much guidance. [There’s] at least a good-faith argument here.”
And when it comes to employment law violations, being able to at least show that you made a good-faith effort to comply can sometimes mean avoiding significant damages.
There is, however, one more option. Some companies have voluntarily stopped asking the question everywhere they operate, Sholinsky noted. Some say it’s about pay equity, and others, like Amazon, say it’s just not worth trying to keep up with the ever-growing patchwork of state and local laws. Employers should note, however, that some laws have other requirements. California’s, for example, requires that employers provide pay ranges for jobs upon request — and that’s not something you can opt out of.
For a list of state and local governments that have banned salary history questions, see HR Dive’s salary history ban tracker.
